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BOND v. AMA

May 23, 1991

MADORA BOND, Plaintiff,
v.
AMERICAN MEDICAL ASSOCIATION, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendant, American Medical Association ("AMA"), for summary judgment on count I of plaintiff Madora Bond's complaint. For the following reasons, the motion is denied.

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.

 FACTS

 Plaintiff Bond is a former employee of the AMA, employed as a secretary. After receiving several promotions, plaintiff applied for the position of assistant director of the List House Activity department. However, the position was filled by a white female, who became plaintiff's supervisor and later placed plaintiff on probation for ninety days.

 On May 31, 1985, plaintiff filed a charge of discrimination, numbered 05185469, with the Equal Employment Opportunity Commission ("EEOC") claiming that defendant denied her promotion and placed her on probation because of her race. On August 15, 1985, plaintiff was terminated by the AMA. On September 23, 1985, plaintiff filed another charge of discrimination, numbered 051856094, alleging that her termination was in retaliation for her previous filing of a discrimination charge.

 DISCUSSION

 It is undisputed that plaintiff filed this case within ninety days of the receipt of the right-to-sue letters requested by her attorney on July 10, 1989. Defendant seeks summary judgment on count I of the complaint, alleging that this count is based upon the right-to-sue letter issued in June of 1986 which dismissed plaintiff's discrimination charge. If the plaintiff had receipt of the letter in June, the ninety day period for the filing of her discrimination claim would have expired in September, 1986, three years before this action was filed.

 Pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., upon the filing of a charge of discrimination, the EEOC shall serve notice of the charge on the employer and conduct an investigation. 42 U.S.C. § 2000e-(5)(b). If the EEOC dismisses a charge of discrimination, the commission informs the aggrieved person of the dismissal and a civil action may be brought against the employer within ninety days of such notice. 42 U.S.C. § 2000e-(5)(f)(1). The ninety day filing requirement is not jurisdictional. St. Louis v. Alverno College, 744 F.2d 1314, 1316, n. 2 (7th Cir. 1984). Rather, the filing requirement acts as a statute of limitations, and is subject to the principles of waiver and equitable tolling. Id.; Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984); Jones v. Madison Service Corp., 744 F.2d 1309, 1314 (7th Cir. 1984).

 The Seventh Circuit employs an "actual receipt" standard in determining when the ninety day filing period begins to run. In other words, the claimant must actually receive the EEOC right-to-sue letter before the filing period starts to run. Jones, 744 F.2d at 1312; St. Louis, 744 F.2d at 1316; Archie v. Chicago Truck Drivers, 585 F.2d 210, 216 (7th Cir. 1978); Robinson v. International Brotherhood of Electrical Workers, Local 134, No. 86 C 6643, slip op. at 6 (N.D. Ill. April 5, 1989); Tyler v. United Parcel Service, Inc., No. 87 C 2311, slip op. at 3 (N.D. Ill. November 3, 1987). A three prong analysis is employed in determining when the ninety day period begins to run: 1) when the letter is received at the claimant's address by someone other than the claimant, the ninety day period begins to run upon actual receipt of the letter by the claimant; 2) when the claimant is represented by counsel who receives the letter, the filing period begins to run from the day the attorney actually receives the letter; and 3) in other cases the court will adopt a "fault approach", where the statutory period begins to run upon some type of fault on the part of the claimant. Tyler, No. 87 C 2311, slip op. at 8-9 (citing Trinkle v. Bell Litho, Inc., 627 F. Supp. 764, 765 (N.D. Ill. 1986)).

 In the instant case, the first prong is inapplicable, as there is no evidence showing that anyone in plaintiff's household had actual receipt of the letter. Moreover, the second prong is inapplicable, as there is no factual allegation that any attorney representing plaintiff actually received a right-to-sue letter. *fn1"


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